E01067

Late lodging of appeal – matter in hands of solicitors throughout.  Failure by solicitors to lodge Trib 1 in respect of a review dated 19 January 2007 until 7 August 2007.  No mitigating circumstances.  Appeal struck out.

EDINBURGH TRIBUNAL CENTRE

	NELSON MITCHELL – T/A JBR ROOFING	Appellant

	- and -

	THE COMMISSIONERS FOR 
	HER MAJESTY’S REVENUE & CUSTOMS	       Respondents

			Tribunal:	 (Chairman):  T Gordon Coutts, QC

Sitting in Edinburgh on Tuesday 2 October 2007

for the Appellant		Mr Nelson Mitchell

for the Respondents	Mr Russell Harrison

© CROWN COPYRIGHT 2007.
DECISION

This matter came before the Tribunal on an application by the Commissioners to have the appeal struck out because it was not timeously lodged.

Mr Mitchell appeared without his solicitor representing him.  The matter in dispute was an assessment for the use of rebated fuel and a penalty under the Hydrocarbon Oils Regulations 1973.  Mr Mitchell stated and is entirely accepted on the matter that in July 2006, while on his way to Norway, he was stopped and enquiries made about the use of rebated fuel in the vehicle in which he was travelling and others used in the course of his business.  He stated that he was in contact with his solicitors immediately.  A review was sought and correspondence was present before the Tribunal indicating that on 19 January 2007 the solicitors were informed by HMRC that a penalty and an assessment was being upheld.  That letter indicated that there was an appeal to the VAT and Duties Tribunal and it was also stated that the appeal should be lodged within 30 days of the date of the letter.  The Tribunal Centre was specified.

There was ample evidence thereafter that so far as Mr Mitchell was concerned he was of the view that he was going to take the matter to a Tribunal.  He so stated on 24 January.  Further notices were sent to him and on 26 February Mr Mitchell contacted HMRC saying that he was taking it to Tribunal and it was in the hands of his solicitors.  A letter was sent by his solicitors to HMRC received 24 April 2007 advising that the debt was under appeal.  HMRC heard nothing further until they were served with a copy of Trib 1 by the Tribunal on 7 August 2007.

That Trib 1 was, according to Mr Mitchell, signed by him in the solicitor’s office on 16 May 2007 and that is what the form bears.  The form was not however sent to the Tribunal office until it was received on 7 August.  It was accompanied by a letter dated 1 August from the same solicitors enclosing the notice of appeal and the assessment.

The appeal is grossly out of time.  It should have been in the hands of the Tribunal 30 days after 19 January.  Even at the date of the signing of Trib 1, 16 May, it was out of time.  The delay was compounded by the solicitors not transmitting the form to the Tribunal until 1 August. 

This is an elementary failure to comply with a clear time limit and, although it is possible that the first delay might have been excusable had Trib 1 been submitted 30 days after its signature the fact is that it was not and that it was in the hands of the solicitors throughout the whole period.  The Tribunal heard nothing from Mr Mitchell himself, which was unsurprising, which might have served to explain or excuse that delay.  In the absence of any explanation the Tribunal strikes out the appeal it not having been timeously submitted.

The result of these matters is that the Appellant has lost his chance of an appeal against a sum of £8,206.  It is now for him to decide whether he wishes to pursue the matter elsewhere in respect of that lost chance.

T GORDON COUTTS, QC

CHAIRMAN

RELEASE:  8 OCTOBER 2007

EDN/7/8011